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Standard Offer Community Solar
Power Purchase Agreement
Form CSG-4
This Standard Offer Community Solar Power Purchase Agreement (“Agreement”) is made and
entered into this _____day of _______ 20___, by and between Entergy New Orleans, LLC
(“ENO” or “Company”), a Texas limited liability company, whose principal place of business is
1600 Perdido Street, New Orleans, Louisiana 70112 and ______________________
(“Subscriber Organization”) a_________________ whose principal place of business is
____________________________, each of which may be referred to herein individually as a
“Party” or collectively as the “Parties.” Subscriber Organization [owns and operates] [operates]
the CSG Facility defined below.
RECITALS:
This Agreement governs the relationship between ENO and Subscriber Organization,
both on behalf of itself and as authorized agent for Subscribers (as defined in Section 1.22
below) and the CSG Facility Owner (as defined in Section 1.6 below), if applicable, with respect
to the Output generated by the community solar generating facility (the “CSG Facility”)
installed, or to be installed, at the location described in Exhibit A attached hereto, with a
generating capacity rating of _____[not to exceed two megawatts as measured by the alternating
current rating of the inverter (MW
AC
)].
Any references to “Rules” pertain to the New Orleans Community Solar Rules
promulgated by the Council for the City of New Orleans (“Council”) in Docket UD-18-03.
In consideration of the premises and mutual covenants herein contained, the Parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
As used herein, the following terms shall have the meanings specified or referred
to below which shall apply equally to single and plural forms. Except as otherwise provided
for herein, capitalized terms shall have the meanings set forth in the Rules, which specify the
facilities, entities, functions and requirements of the New Orleans community solar program
(“Community Solar Program”), implemented by the City Council of New Orleans, as of the date
of this Agreement.
1.1. “Allocation” shall mean the monthly allocation, stated in kilowatts (“kW”) as a
share of the total nameplate capacity of the CSG Facility, applicable to each Subscriber’s
Subscription reflecting such Subscriber’s allocable portion of Output produced by the CSG
Facility in a particular Production Month. In accordance with Section 4.6 below, the Subscriber
Organization is required to timely provide the Allocation to ENO monthly, which ENO will
in turn use to calculate the Credit for each billing month.
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1.2. “Baseline Annual Usage” shall refer to a Subscriber’s accumulated electricity use
in kilowatt-hours (kWh) for the previous 12-month period at the time the Subscription is entered
into, as measured at ENO’s meter, net of any distributed generation provided by the Subscriber
to the utility system at that meter. For a Subscriber that does not have a record of 12 months of
electricity use at the time of the Subscriber’s most recent Subscription, an estimate of the
Subscriber’s accumulated 12 months of electricity use in kWh, determined in a manner specified
in the Community Solar Program Implementation Plan submitted by ENO and approved by the
Council in Council Docket UD-18-03 (“Plan”).
1.3. “Community Solar Generating Facility” or “CSG Facility” shall mean a solar
energy facility that: (i) converts solar energy to electricity; (ii) has a generating
capacity/nameplate rating that does not exceed two (2) megawatts (MW); (iii) can provide power
to or is connected to ENO’s distribution system; (iv) is located in ENO’s service territory; (v) is
individually metered; (vi) has at least three Subscribers; (vii) sells the Output from the facility to
ENO and which the purchase of the Output from the facility shall take the form of a credit against
the Subscriber’s electric bill; and (viii) the beneficial use and renewable attributes of the Output
of the facility belongs to the Subscribers.
1.4. “Council” mean the Council of the City of New Orleans.
1.5. “Credit” shall mean the dollar amount per kilowatt hour (“kWh”) paid by
ENO to each Subscriber as a credit on the Subscriber’s monthly retail electric service bill to
compensate the Subscriber for its allocated share of Output produced by the applicable CSG
Facility and delivered to ENO, in accordance with ENO’s Community Solar Generating
Facilities Subscription Service rate schedule (“Schedule CSGF”).
1.6. “CSG Facility Owner” shall mean the entity or entities holding legal title or
otherwise having full rights of ownership in and to the CSG Facility. If the CSG Facility Owner
is the same entity as Subscriber Organization, then Section 3.2 hereof shall not be applicable.
1.7. “Customer” means a retail electric customer account holder of ENO. For
purposes of this Agreement, this term shall not be applied to a Subscriber Organization that is
issued a retail electric customer account number for a CSG Facility by ENO.
1.8. “Date of Commercial Operation” shall mean the day upon which Commercial
Operation is first achieved pursuant to Section 4.3 hereof.
1.9. “Electric Tariffs” shall mean ENO’s rates for electric service as in effect
and on file with the Council from time to time.
1.10. “Force Majeure” shall have the meaning as set forth in Section 6.1 of this
Agreement.
1.11. “House Power” shall mean the supply of retail power for consumption at the Site.
1.12. “Initial Subscriber Report” shall mean the list of potential Subscribers for a CSG
Facility provided by the Subscriber Organization to ENO as required by the Plan. The Initial
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Subscriber Report shall be in the form required by ENO and shall include for each potential
Subscriber the name, identifying information, and the proposed Allocation applicable to the
Subscription such that ENO can verify the potential Subscriber’s eligibility to participate in the
program.
1.13. “Interconnection Agreement” shall mean the separate agreement to be entered
into between Subscriber Organization and ENO providing the terms and conditions by which
Subscriber Organization will interconnect and operate the CSG Facility in parallel with ENO’s
electric distribution system at the Site.
1.14. “Lo w -In come Customer” shall mean a Customer whose gross annual household
income is at or below fifty percent (50%) of the Area Median Income for the year of subscription
or who is certified for any federal, state or local assistance program that limits participation to
households whose income is at or below fifty percent (50%) of the Area Median Income.
1.15. “Low-Income Subscriber” means a Subscriber who is a Low-Income Customer.
1.16. “Monthly Subscription Information” shall mean the information submitted to
ENO on the Initial Subscription Report as modified by the information provided on the Monthly
CSG Facility Subscription Updates required by the Plan and as described in Section 4.6, below.
1.17. “Output” means the energy and power produced by a CSG Facility.
1.18. “Production Month” shall mean the calendar month during which Output is
produced by the CSG Facility and delivered to ENO at the Service Connection.
1.19. “Renewable Energy Credit” or “REC” shall mean a contractual right to the full
set of non-energy attributes, including any and all credits, benefits, emissions reductions, offsets
and allowances, howsoever entitled, directly attributable to a specific amount of electric energy
generated from a renewable energy resource.
1.20. “Service Connection” is the location on the CSG Facility’s premises/facilities at
which a point of delivery of power between ENO and the CSG Facility is established.
1.21. “Site” shall mean the parcel of real property within ENO’s territory on which the
CSG Facility will be constructed and located, including any easements, rights of way, surface
use agreements and other interests or rights in real estate reasonably necessary for the
construction, operation and maintenance of the CSG Facility. The Site is more specifically
described in Exhibit A to this Agreement.
1.22. “Subscriber” shall mean a Customer of ENO that holds a Subscription to one or
more CSG Facilities and has identified one or more individual meters or accounts related to
electric service to which the Subscription(s) shall be attributed. A “Subscriber” shall also mean
a Low-Income Subscriber.
1.23. “Subscription” shall mean a proportional interest owned or held by a Subscriber in
the CSG Facility, which meets all of the requirements set forth in Section 3.3, below.
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1.24. “Unsubscribed Energy” refers to any energy Output of a CSG Facility in kWh that
is not allocated to a Subscriber as part of a Subscription.
ARTICLE II
SALE AND DELIVERY OF OUTPUT AND OWNERSHIP OF RENEWABLE
ENERGY CREDITS
2.1 Sale and Delivery of Subscribed Output. Effective upon the Date of Commercial
Operation, Subscriber Organization shall sell and deliver to ENO at the Production Meter all of the
Output produced by the CSG Facility and attributable to Subscriptions held by all Subscribers in
the CSG Facility. As set forth in the Rules, ENO shall not be obligated to make any payment to
Subscriber Organization for the Subscribed Output but instead will render monthly Credits to
Subscribers as described below.
2.2 For each Subscriber, ENO shall apply a monthly Credit each billing period to such
Subscriber’s bill for retail electric service in accordance with ENO’s Rate Schedule CSGF based
upon the Allocation as set forth in the applicable Monthly Subscription Information. ENO is only
obligated to apply monthly bill Credits for Subscribed Output produced and delivered by the CSG
Facility to the Production Meter.
2.3 For purposes of applying the monthly Credit to Subscribers’ bills, ENO shall be
entitled to rely exclusively on the Monthly Subscription Information as updated by Subscriber
Organization in accordance with the procedures required by the Plan referenced in Section 4.6,
below. The correction of previously-applied monthly Credits among Subscribers due to any
inaccuracy reflected in such Monthly Subscription Information with regard to a Subscriber’s
Subscription in the CSG Facility and the beneficial share of Output produced by the CSG Facility
shall be the full responsibility of the Subscriber Organization.
2.4 The ownership and title to all renewable energy attributes or RECs associated with
the CSG Facilities shall belong to the individual Subscribers.
2.5 If the Subscriber Organization can demonstrate an increased value provided directly
to Subscribers with ownership and title of the RECs by the Subscriber Organization, the Subscriber
Organization should provide said support to the Council, which may allow the Subscriber
Organization to offer Subscribers the opportunity to redeem the value of such RECs on an
individual or consolidated basis.
2.6 Purchase and Sale of Unsubscribed Energy. Effective upon the Date of Commercial
Operation, Subscriber Organization agrees to sell, and ENO agrees to purchase, up to twenty
percent (20%) of the monthly Unsubscribed Energy produced by the CSG Facility and delivered
to ENO at the Production Meter. The rate per kWh that ENO shall pay Subscriber Organization
for the up-to-twenty percent (20%) portion of Unsubscribed Energy pursuant to this Section shall
be ENO’s estimated avoided energy costs for the appropriate time period from ENO’s most recent
biennial filing with the Clerk of Council of the City of New Orleans pursuant to the Public Utilities
Regulatory Policies Act of 1978, Section 201. As provided in the Rules, ENO shall receive all
Unsubscribed Energy beyond the up-to-twenty percent (20%) portion without any obligation or
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requirement to render payment therefor. The amount of monthly Unsubscribed Energy shall be
determined after all Subscribers have been billed and credited based on the monthly Output of each
applicable CSG Facility.
2.7 Title, Risk of Loss, and Warranty of Title. As between the Parties, Subscriber
Organization shall be deemed to be in control of the energy output from the CSG Facility up to
and until delivery and receipt by ENO at the Service Connection and ENO shall be deemed to be
in control of such energy from and after delivery and receipt at such Service Connection.
Subscriber Organization warrants and represents to ENO that it has or will have at the time of
delivery good and sufficient title to all Output and/or the ability to transfer good and sufficient
title of same to ENO.
2.8 Exclusive Dealing. Subscriber Organization shall not sell any Output generated
from the CSG Facility to any person or entity other than ENO during the Term of this Agreement.
ARTICLE III
REPRESENTATIONS OF THE PARTIES AND CONDITIONS PRECEDENT
3.1 Subscriber Organization represents and warrants as follows:
(a) it is registered with the Council and has a valid identification number, which
shall be maintained and renewed annually in accordance with the Rules;
(b) it has and will maintain acceptable proof of Site control such as evidence of
property ownership, an executed lease agreement, or a signed option to purchase a lease;
(c) it has the right and authority to sell the Unsubscribed Energy produced by
the CSG Facility to ENO on behalf of the CSG Facility Owner, the Subscribers and itself; and
(d) it will at all times maintain a valid Interconnection Agreement.
3.2 If the CSG Facility Owner and the Subscriber Organization are not the same person,
then the undersigned CSG Facility Owner hereby agrees and consents to the terms of this
Agreement and hereby authorizes Subscriber Organization to perform any and all acts necessary
on its behalf to carry out the duties, responsibilities and obligations provided for herein as
Subscriber Organization, and to sell on the CSG Facility Owner’s behalf any and all of CSG
Facility Owner’s interest in the Output produced by the CSG Facility to ENO in accordance with
the terms hereof.
3.3 Requirements and Restrictions Applicable to Subscribers and Subscriptions. The
conditions set forth in the following subparagraphs (a) through (d) of this Section 3.3 must be
satisfied at all times during the Term of this Agreement, except as specifically provided
otherwise below. ENO reserves the right to refuse to accept any additions, deletions or changes to
the Monthly Subscription Information to the extent such addition, deletion or change results in
non-compliance with any of such conditions. For purposes of this Agreement, the Allocation for
any Subscriber or Subscription that no longer satisfies the below conditions for qualification as a
valid Subscriber or Subscription shall be treated as an unsubscribed portion, and the Monthly
Subscription Information automatically changed accordingly, unless and until such Allocation is
changed by Subscriber Organization in a manner that satisfies all such conditions.
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(a) A Customer may not hold Subscriptions representing a total amount of
energy in the Community Solar Program that exceeds 100 percent (100%) of the value of the
Subscriber’s Baseline Annual Usage and must comply with the provisions of Section III.A.(3) of
the Rules.
(b) No Customer may own more than a forty percent (40%) interest in the
beneficial use of the electricity generated by the CSG Facility, including without limitation, the
renewable energy and RECs associated with or attributable to the CSG Facility.
(c) Each Subscription shall be sized to represent at least one kW of the CSG
Facility’s nameplate rating. The minimum one kW sizing requirement herein shall not apply to
Subscriptions owned by an eligible Low-Income Subscriber.
(d) CSG Facilities shall be classified into one of two categories: (i) Open
Category: CSG Facilities of any size up to two MW as measured by the alternating current rating
of the system’s inverter; and (ii) Low-Income Category: CSG Facilities of any size up to two MW
as measured by the alternating current rating of the system’s inverter in which a minimum of 30
percent (30%) of the CSG Facility’s Output is provided to Low-Income Subscribers.
3.4 Requirements and Restrictions Applicable to the CSG Facility. The conditions set
forth in the following subparagraphs (a) through (d) of this Section 3.4 must be satisfied at all
times during the Term of this Agreement. ENO shall have the right hereunder to refuse to purchase
any and all Output from the CSG Facility during the period it is not in compliance with any of such
conditions if the Subscriber Organization does not remedy the deficiency in a timely manner.
(a) The CSG Facility shall have at least three (3) Subscribers.
(b) The CSG Facility’s generating capacity/nameplate rating must not exceed
two (2) MW as measured by the alternating current rating of the system’s inverter.
(c) The CSG Facility must be located within ENO’s service territory, must be
individually metered and must connect to ENO’s distribution system.
(d) The total number of accounts per CSG Facility may be determined by the
Subscriber Organization; however, each Subscription shall be sized to represent at least one kW of
the CSG Facility’s nameplate rating. The minimum one kW sizing requirement herein shall not
apply to Subscriptions owned by an eligible Low-Income Subscriber.
3.5 Responsibility for Verification of Subscriber Eligibility. The Subscriber
Organization and ENO shall jointly verify that each Subscriber is eligible to be a Subscriber in
the CSG Facility, except for a Subscriber’s eligibility to be considered a Low-Income Subscriber,
which shall be the sole responsibility of the Subscriber Organization. The Subscriber Organization
shall provide an Initial Subscriber Report to ENO within the deadline and in the form required by
the Plan. Should ENO determine that any of the customer information provided is either incorrect
or incomplete, the Subscriber Organization shall correct the deficiency within the required
deadline. The Initial Subscriber Report shall include, at a minimum, each potential Subscriber’s
name and ENO Account number, the percentage share of the CSG Facility Allocation owned by
the Subscriber, the effective date of the ownership of that Subscription, the premises to which the
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Subscription is attributed for the purpose of applying billing credits, and whether the Subscriber
meets the criteria to be eligible as a Low-Income Subscriber. Changes in the Subscriber enrollment
records shall be communicated by the Subscriber Organization to ENO electronically using the
Monthly CSG Facility Subscription Update form required by the Plan, as described in Section 4.6,
below. Transfers of Subscriptions shall also be communicated by the Subscriber Organization to
ENO using the required Monthly CSG Facility Subscription Update form and will be handled as
described in the Plan and Section 4.6, below.
3.6 Compliance with Laws. A Subscriber Organization, and, where relevant, third-
party-owner/developer, are responsible for ensuring that its CSG Facility is constructed,
maintained, and operated in compliance with all relevant local, state and federal laws, rules,
regulations and standards, including but not limited to, reliability, safety, zoning, permitting,
occupational safety and health, and environmental laws, rules, regulations and standards, as well
as adherence to ENO’ s interconnection policies and procedures and the Rules.
3.7 False Representation. Any representation or warranty made by Subscriber
Organization in this Agreement that shall prove to have been false or misleading in any material
respect when made or ceases to remain true during the Term if such cessation would reasonably
be expected to result in a material adverse impact on ENO, shall constitute an event of default
subject to Section 7.1 hereof.
3.8 ENO Disclaimer. Nothing in this Agreement shall be construed as a representation
or warranty by ENO of the design, installation or operation of the CSG Facility or any component
thereof, and ENO expressly disclaims all warranties of the equipment as to workmanship, quality,
or performance, including the fitness of the equipment for the purpose intended.
ARTICLE IV
TERM, RENEWAL OPTIONS, COMMERCIAL OPERATION AND
PERFORMANCE
4.1 Term. This Agreement shall become effective upon its execution by the Parties and
shall continue in effect for a Term of 10 years from and after the Date of Commercial Operation
(“Initial Term”), subject to early termination as set forth herein, or until the termination of any
Interconnection Agreement associated with the CSG Facility, whichever occurs first. Applicable
provisions of this Agreement shall continue in effect after termination, including early
termination, to the extent necessary to enforce or complete the duties, obligations or
responsibilities of the Parties arising prior to termination and, as applicable, to provide for final
billings and adjustments related to the period prior to termination, repayment of any money due
and owing to either Party pursuant to this Agreement, and the indemnifications specified in this
Agreement.
4.2 Renewal. If Subscriber Organization is in compliance with the terms of this
Agreement, it will have the option to renew for up to 10 years in two 5-year renewal periods
(“Renewal Period”). Company will send Subscriber Organization a renewal notice three (3)
months prior to the expiration of the Initial Term.
4.3 Project Development. Prior to the Commercial Operation Date, Subscriber
Organization agrees to provide Company with a schedule of the projected completion and in-
service dates for the project, and inform Company of any changes to the schedule within five (5)
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business days of the time that the Subscriber Organization becomes aware of such changes.
Upon request, the Company shall have the right to monitor the testing and operation of the CSG
Facility at the CSG Facility for compliance with this Agreement, provided, however, that
Company shall comply with all of Subscriber Organization’s applicable safety and health rules
and requirements. Company’s monitoring of the C S G Facility shall not be construed as
inspections or endorsing the design thereof nor as any express or implied warranties including
performance, safety, durability, or reliability of the CSG Facility.
4.4 Commercial Operation. Commercial Operation is achieved when: (a) 100% of
the nameplate capacity of the CSG Facility is installed; (b) the CSG Facility has operated
without experiencing any abnormal or unsafe operating conditions, as witnessed by ENO
personnel at the Site; (c) all permits necessary to authorize the production and, if applicable,
delivery to ENO of Output generated by the CSG Facility have been obtained; (d) the Production
Meter has been installed; and (e) the Interconnection Agreement has been entered into between
ENO and Subscriber Organization and the CSG Facility has been interconnected with ENO’s
electric distribution system pursuant to the Interconnection Agreement.
4.5 Deposit. If Commercial Operation is not achieved within 12 months of any
approved application, Subscriber Organization shall provide to ENO an additional deposit of $50
per kW to continue under the Community Solar Program as required under Section VII(D)(11) of
the Rules. ENO shall return the CSG Facility deposit upon commencement of Commercial
Operation, unless the CSG Facility fails to begin operating within 18 months of an approved
application, in which case the deposit shall be forfeited, and this Agreement terminated.
4.6 Maintenance and Repair of CSG Facility. The Subscriber Organization shall
maintain the CSG Facility and the individual components thereof in good working order at all
times during the Term of this Agreement. If, during the Term of this Agreement the CSG Facility
or any of the individual components of the system should be damaged or destroyed such that the
extent of the damage affecting output exceeds twenty (20) percent of the CSG Facility’s nameplate
rating, the Subscriber Organization shall provide ENO written notice of such damage, a description
of the equipment damaged, the corresponding reduction to the CSG Facility’s output, and the
anticipated duration of repairs to the facility to return the facility to its original nameplate rating.
If, after such damage, the CSG Facility is not returned to its original nameplate rating within one
hundred and eighty (180) days, ENO shall have the right, exercisable at its sole option, to terminate
this Agreement upon not less than thirty (30) days written notice, with no further obligation of the
Parties to perform hereunder following the effective date of such termination. In all other
situations, if the CSG Facility is out of operation for more than ninety (90) consecutive days during
the Term of this Agreement, ENO shall have the right to terminate this Agreement by providing
written notice to Subscriber Organization anytime during the period following the expiration of
such ninety (90) days and before the CSG Facility has been made fully operational again.
4.7 Updating of Subscription Information. Subscriber Organizations are required to
provide real time reporting of production as specified by ENO. For CSG Facilities greater than
250 kW, the Subscriber Organization shall provide real time access to production data. ENO may
require different real time reporting for CSG Facilities 250 kW and smaller. As required by the
Plan, the Subscriber Organization will provide electronically to ENO a Monthly CSG Facility
Subscription Update for each CSG Facility listing Subscribers who have been added or deleted
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since the prior month along with their applicable Subscription amounts. The monthly update shall
follow a standard format specified by ENO in order to integrate data into ENO’s billing system.
The monthly update shall also include the amount of the CSG Facility’s capacity that remains
unsubscribed. The update must be provided within the deadline imposed by the Council-approved
Plan for updates to take effect for the first billing cycle of the next month. If the Subscriber
Organization provides the update after the specified deadline, updates would take effect on the first
billing cycle of the month following the next month.
4.8 Certification of Low-Income Qualification. The Subscriber Organization shall
certify to ENO in writing that the Subscriber Organization has verified the eligibility of all Low-
Income Subscribers needed to qualify for the program prior to receiving permission to operate
from ENO. By May 1 of each year, the Subscriber Organization shall re-certify in writing to the
Company the Low-Income Subscriber status of all Subscribers to its CSG Facilities that are
designated as such.
4.9 Audits. ENO reserves the right, upon thirty (30) days written notice, to audit
Subscriber Organization’s Subscriber and Subscription records and to inspect the CSG Facility
at any time during the Term of this Agreement, and for an additional period of one year thereafter.
ARTICLE V
PRODUCTION METER AND INTERCONNECTION
5.1 Production Meter. Upon the initial satisfaction of all of the conditions set forth in
Sections 3.3 and 3.4 above, and any applicable requirements of the Distribution Interconnection
Standards, ENO shall install, and thereafter own, operate, maintain and read the Production Meter,
which shall be sufficiently sized to measure all Output generated by the CSG Facility, and
Subscriber Organization shall reimburse ENO for the cost of installing the Production Meter.
Such reimbursement shall be due within thirty (30) days from the date a bill is presented to
Subscriber Organization by ENO after the Production Meter is installed. If Subscriber
Organization does not make payment in full within that time, the unpaid balance shall bear
interest at the rate of one and one half percent (1.5%) per month. ENO reserves the right to
replace the Production Meter, at its sole cost, at any time and for any reason.
5.2 Telecommunications Equipment. Subscriber Organization shall cause to be
provided, and shall own, operate and maintain at the Subscriber Organization’s sole cost any
necessary electronic communications equipment or devices that are required to provide real-time
access to 15-minute interval data regarding the Output produced by the CSG Facility. Unless
otherwise notified in writing by ENO that an alternative telecommunication device is acceptable,
such equipment shall include an active, wired telephone or data line capable of transmitting the
monthly 15-minute interval data to ENO. ENO reserves the right to replace the
telecommunication equipment at its sole cost.
5.3 Failure to Maintain Telecommunication Line. If the telecommunication line
required to be maintained by Subscriber Organization pursuant to Section 5.2 is inactive or non-
operational during any Production Month when ENO attempts to access measurement data from
the telemetry equipment on the Production Meter, Subscriber Organization shall be assessed a Trip
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Charge applicable to non-gratuitous labor service at the currently-effective rate set forth in the
Schedule of Charges for Rendering Service section of ENO’s electric tariff. If the
telecommunication line is inactive or non-operational for three consecutive Production Months,
then, in addition to the applicable Trip Charges, all energy produced and delivered from the CSG
Facility shall be treated and priced as unsubscribed energy hereunder effective as of the first
calendar day of such third Production Month and continuing until the subsequent Production
Month during which the telecommunication line is made operational and active. Subscriber
Organization’s payment of Trip Charges hereunder shall be due within thirty (30) days from the
date a bill is presented to Subscriber Organization by ENO. If Subscriber Organization does not
make payment in full within that time, the unpaid balance shall bear interest at the rate of one
and one half percent (1.5%) per month to be invoiced monthly.
5.4 House Power. This Agreement does not provide for House Power. Subscriber
Organization shall be solely responsible for arranging retail electric service exclusively from ENO
in accordance with ENO’s Electric Tariffs. Subscriber Organization shall obtain House Power
solely through separately metered retail service and shall not obtain House Power through any
other means, and waives any regulatory or other legal right to the contrary, except the right to
self-generate as provided in this Section 5.4. Subscriber Organization’s right to self-generate
hereunder shall be limited to the electrical energy consumed at the Site that is directly related to
the CSG Facility’s generation, including system operation, performance monitoring and
associated communications, and shall not include energy necessary for domestic or other purposes,
such as for perimeter lighting, a visitor’s center or any other structures or facilities at the Site.
The Parties acknowledge and agree that the performance of their respective obligations with
respect to House Power shall be a separate from this Agreement and shall be interpreted
independently of the Parties’ respective obligations under this Agreement. Notwithstanding any
other provision in this Agreement, nothing with respect to the arrangements for House Power shall
alter or modify Subscriber Organization’s or ENO’s rights, duties, and obligations under this
Agreement. This Agreement shall not be construed to create any rights between Subscriber
Organization and ENO with respect to the arrangements for House Power.
5.5 Interconnection Agreement. The Parties recognize that Subscriber Organization and
ENO will enter into a separate Interconnection Agreement consistent with the provisions of
Entergy’s Distribution Design Basis/Standards DR7-01 or DR7-02. The Parties acknowledge and
agree that the performance of their respective obligations with respect to the interconnection of the
CSG Facility pursuant to the Interconnection Agreement shall be subject to the prior satisfaction
of all of the conditions set forth in Sections 3.3 and 3.4 above, but that in all other respects the
Interconnection Agreement shall be a separate and free-standing contract and shall be
interpreted independently of the Parties’ respective obligations under this Agreement.
Notwithstanding any other provision in this Agreement, nothing in the Interconnection
Agreement shall alter or modify Subscriber Organization’s or ENO’s rights, duties and obligations
under this Agreement. This Agreement shall not be construed to create any rights between
Subscriber Organization and ENO with respect to the Interconnection Agreement.
ARTICLE VI
FORCE MAJEURE
6.1 Definition of Force Majeure. (a) The term “Force Majeure,” as used in this
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Agreement, means causes or events beyond the reasonable control of, and without the fault or
negligence of the Party claiming Force Majeure, including, without limitation, acts of God, sudden
actions of the elements such as floods, earthquakes, hurricanes, or tornadoes; high winds of
sufficient strength or duration to materially damage a CSG Facility or significantly impair its
operation such that it is no longer capable of generating Output; long-term material changes in
Output flows across the CSG Facility caused by climatic change, lightning, fire, ice storms,
sabotage, vandalism caused by others despite reasonable efforts of Subscriber Organization to
secure and protect the CSG Facility, terrorism, war, riots, fire; explosion, insurrection, strike, slow
down or labor disruptions (even if such difficulties could be resolved by conceding to the demands
of a labor group), and actions or inactions by any governmental authority taken after the date
hereof (including the adoption or change in any rule or regulation or environmental constraints
lawfully imposed by such governmental authority), but only if such requirements, actions, or
failures to act prevent or delay performance, and inability, despite due diligence, to obtain any
licenses, permits, or approvals required by any governmental authority having jurisdiction.
(b) The term Force Majeure does not include (i) any acts or omissions of an y third
party, including, without limitation, any vendor, materialman, customer, or supplier of Subscriber
Organization, unless such acts or omissions are themselves excused by reason of Force Majeure;
(ii) any full or partial curtailment in the electric output of the CSG Facility that is caused
by or arises from a mechanical or equipment breakdown or other mishap or events or
conditions attributable to normal wear and tear or flaws, unless such mishap is caused by one of
the following: catastrophic equipment failure; acts of God; sudden actions of the elements,
including, but not limited to: floods; hurricanes, tornadoes; sabotage; terrorism; war; riots; and
emergency orders issued by a governmental authority or (iii) changes in market conditions that
affect the cost of ENO’s or Subscriber Organization’s supplies, or that affect demand or price for
any of ENO’s or Subscriber Organization’s products.
6.2 Applicability of Force Majeure. (a) Neither Party shall be responsible or liable for
any delay or failure in its performance under this Agreement, nor shall any delay, failure, or other
occurrence or event become an event of default, to the extent such delay, failure, occurrence or
event is substantially caused by conditions or events of Force Majeure, provided that:
i. the non-performing Party gives the other Party prompt written notice
describing the particulars of the occurrence of the Force Majeure;
ii. the suspension of performance is of no greater scope and of no longer
duration than is required by the Force Majeure;
iii. the non-performing Party proceeds with reasonable diligence to remedy its
inability to perform and provides weekly progress reports to the other Party
describing actions taken to end the Force Majeure; and
iv. when the non-performing Party is able to resume performance of its
obligations under this Agreement, that Party shall give the other Party
written notice to that effect.
(b) Except as otherwise expressly provided for in this Agreement, the existence of
a condition or event of Force Majeure shall not relieve the Parties of their obligations under this
Agreement (including, but not limited to, payment obligations) to the extent that performance
of such obligations is not precluded by the condition or event of Force Majeure. Notwithstanding
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this provision, ENO shall have no obligation to make any payment for Output under this
Agreement except for actual production as measured by the metering provisions of this Agreement.
6.3 Limitations on Effect of Force Majeure. In no event will any delay or failure of
performance caused by any conditions or events of Force Majeure extend this Agreement beyond
its stated Term. In the event that any delay or failure of performance caused by conditions or
events of Force Majeure continues for an uninterrupted period of three hundred sixty-five (365)
days from its occurrence or inception, as noticed pursuant to Section 6.2(a)(i) above, the Party
not claiming Force Majeure may, at any time following the end of such three hundred sixty-five
(365) day period terminate this Agreement upon written notice to the affected Party, without
further obligation by either Party except as to costs and balances incurred prior to the effective
date of such termination. The Party not claiming Force Majeure may, but shall not be obligated to,
extend such three hundred sixty-five (365) day period, for such additional time as it, at its sole
discretion, deems appropriate, if the affected Party is exercising due diligence in its efforts to cure
the conditions or events of Force Majeure.
ARTICLE VII
DEFAULT, REMEDIES AND DISPUTE RESOLUTION
7.1 Events of default. Any of the following events shall constitute an event of default if
such event has not been cured as provided for below:
(A) Third-party owner/developer, Subscriber Organization and their affiliated and parent
companies’ failure at any time during the Term of this Agreement to meet the requirements under
Section 3.1(d) (Interconnection Agreement). In such event Company may, and in its sole
discretion, terminate this Agreement. Upon such termination Company shall have no further
financial or other obligation to the Subscriber Organization as a result of such termination. The
provisions of paragraph 7.3 shall not apply to an event of default under this paragraph.
(B) The failure by either Party to perform or observe any other material term or provision
of this Agreement, that is not excused by Force Majeure, and such failure remains unremedied
for 30 days after notice thereof shall have been given by the non-defaulting Party.
7.2 Prior to commencing any action to enforce this Agreement, the non-defaulting
Party shall provide written notice of default to the Party asserted to be in default and the Party
asserted to be in default shall have a period of thirty (30) days following receipt of such written
notice within which to cure the asserted default (or if the asserted default is of a nature which
cannot reasonably be cured within such 30-day period, to commence and thereafter diligently
pursue a cure thereof.)
7.3 Failure of either Party to assert a default or to enforce any term or condition of
this Agreement shall not constitute a waiver of any other similar or other default, or waiver of
such term or condition or of any other term or condition of this Agreement. Each Party hereby
irrevocably and unconditionally waives any right to a trial by jury for the resolution of any dispute
arising under this Agreement.
7.4 If any disputes arise concerning this Agreement, including but not limited to
enforcement of any term or condition of the Agreement, the prevailing Party in any action brought
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for the purpose of enforcing such provisions shall be entitled to recover its reasonable attorney
fees, expenses and costs of such action from the non-prevailing Party.
ARTICLE VIII
LIABILITY AND INDEMNIFICATION
8.1 Limitation of Liability. ENO shall not be responsible or liable for any personal
injury or property damage caused by the CSG Facility or any individual component equipment of
the system. ENO shall not be liable to the Subscriber Organization for any punitive, special,
exemplary or consequential damages, including but not limited to, lost profits, loss of use, and
costs of replacement, whether based in contract, tort, upon any theory of indemnity, or otherwise.
ENO makes no warranty or representation concerning the taxable consequences, if any, to
Subscriber Organization with respect to the production and sale of Output, and Subscriber
Organization is urged to seek professional advice regarding this issue.
8.2 Indemnification by Subscriber Organization. Subscriber Organization shall
indemnify, defend, and hold ENO, its employees, agents, successors, assigns, subsidiaries and
affiliates harmless against any and all claims, demands, liens, lawsuits, judgments or actions
of whatsoever nature that may be brought on account of the installation, maintenance, operation,
repair, or replacement of the CSG Facility or any component equipment of the system, or
Subscriber Organization’s administration of Subscriptions or the performance of its responsibilities
as a subscriber organization.
ARTICLE IX
LAWS AND REGULATORY BODIES
9.1 Agreement Subject to Laws and Regulations. This Agreement and the rights and
obligations of the Parties hereunder shall be subject to all valid applicable state, local and federal
laws, rules, regulations, ordinances, orders and decisions issued or promulgated for or by any court
or regulatory agency having or asserting jurisdiction over this Agreement, the services to be
performed hereunder, or either of the Parties hereto.
9.2 Rights Upon Regulatory Agency or Court Action. Except as may be otherwise
provided herein, in the event that any court or regulatory agency having or asserting jurisdiction over
these premises takes any action or issues any determination that directly or indirectly prohibits
performance to a material extent under this Agreement by either or both parties or otherwise makes
such performance illegal or impossible, such action or determination will be considered to be an event
of Force Majeure. In the event that any such court or regulatory agency takes any action or issues
any determination that directly or indirectly effects a material adverse change to any substantive
provision of this Agreement, in the terms of performance or with respect to the rights or obligations
of either party hereto (in that party’s reasonable good faith opinion), then the party materially
adversely affected may: (i) continue to perform its obligations under the Agreement as changed,
(ii) seek to renegotiate the terms of this Agreement by providing written notice to the other party of
its desire to renegotiate, or (iii) at any time during a period of ninety (90) days next following
receipt by the other party of written notice of any such action by any such court or regulatory
agency, terminate this Agreement by providing written notice to the other party hereto on or before
the end of such ninety (90) day period, such termination to be effective on the first day of the month
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next following ninety (90) days after the receipt of such notice of termination; provided however that,
if such action or determination is rescinded prior to the effectiveness of such notice, such notice will
be deemed invalid. In the event the Agreement terminates under this provision, all further rights and
obligations of ENO and Subscriber Organization under this Agreement will be null and void. Each
party hereto shall provide reasonable and prompt notice to the other party hereto as to any regulatory
proceedings or actions described herein that could affect the rights and obligations of the Parties
hereto.
9.3 Performance Pending Renegotiation or Termination. Irrespective of any action by
any court or regulatory agency as contemplated by Sections 9.1 or 9.2, above, each of the Parties
hereto shall continue to honor and perform all of their respective warranties, representations and
obligations under this Agreement including, but not limited to, the obligations of Subscriber
Organization to sell and deliver the Output of the CSG Facility to ENO and the obligations of
ENO to accept and pay Subscriber Organization as provided herein, until the Parties either mutually
renegotiate the terms of this Agreement or until this Agreement terminates pursuant to the
provisions of Section 9.2 above.
9.4 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Louisiana.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all constitute one and the same instrument. The Parties
agree that a facsimile copy of a counterpart signed by the other Party will be deemed original
and binding.
10.2 Assignment, Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the successors and assigns of the respective Parties hereto and shall
not be assigned by either Party without the written consent of the non-assigning Party, which
consent shall not be unreasonably withheld. In no event shall any assignment by Subscriber
Organization become effective before a new Subscriber Agency Agreement has been entered
into between Subscriber Organization’s assignee and each and every Subscriber.
10.3 Relationship of the Parties. Nothing herein is intended nor shall ever be construed
to create a joint venture, partnership or any other type of association between the Parties, nor shall
either Party have the right to act in behalf of or bind the other for any liability, cost, expense
or undertaking except as set forth in this Agreement.
10.4 Amendments or Modifications. No amendment, modification, or change of this
Agreement shall be binding upon the Parties unless such amendment, modification, or change is
in writing and executed by the Parties.
10.5 Construction. No understandings or agreements not expressly stated herein shall be
binding on the Parties in the construction or fulfillment hereof unless such understandings or
agreements are reduced to writing and signed by the respective parties. The rule of construction
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that ambiguous provisions shall be interpreted against the drafter shall not apply to this Agreement.
10.6 No Third-Party Beneficiaries. Except as otherwise specifically provided herein, this
Agreement is not intended to, and shall not, create rights, remedies, or any benefits of any
character whatsoever, in favor of any person, corporation or other entity other than the Parties
hereto, and the obligations herein assumed are for the use and benefit of the Parties, their
successors in interest, and permitted assigns.
10.7 Remedies Cumulative. Except as otherwise specifically provided herein, each
remedy provided for under this Agreement shall be taken and construed as cumulative and in
addition to every other remedy provided for herein or available at law or in equity.
10.8 Notices. All notices, reports or other communications provided for in this
Agreement shall be in writing and shall be deemed to have been sent when delivered by hand,
sent by facsimile with verification, or when deposited in the United States mail, postage prepaid
and properly addressed or when sent via overnight courier:
If to ENO:
__________________________
If to Subscriber Organization:
or at such other address as either party may hereafter designate to the other in
writing.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement as of the date
and year first above written.
SUBSCRIBER ORGANIZATION
Name (printed):
Title:
Signature: Date:
ENTERGY NEW ORLEANS, LLC
Name (printed):
Title:
Signature: Date:
CSG FACILITY OWNER (if different from Subscriber Organization)
Name (printed):
Title:
Signature: Date:
No.
Exhibit A
DESCRIPTION OF CSG Facility SITE:
